PESHAWAR: Peshawar High Court has annulled the award of a medicine supply contract by the provincial government to a pharmaceutical firm allegedly involved in provision of spurious drugs in the past in another province.

A bench consisting of Justice Syed Arshad Ali and Justice Dr Khurshid Iqbal termed the process of awarding the contract as ‘engineered’ and ‘discriminatory’ and a ‘quintessential case of mis-procurement’, and directed the director general drugs to reinitiate the process of procurement of the said medicines strictly in accordance with law.

The bench accepted a pro-bono petition field by a citizen, Waqar Ahmad, challenging the legality of the public procurement process while awarding the said contract for hospital medicines.

The petitioner had challenged the omission of a clause in the standard bidding document (SBD) pertaining to spurious drugs by the competing pharmaceutical companies.

Terms contract awarding process ‘engineered, discriminatory’

Represented by senior lawyer Shumail Ahmad Butt, the petitioner had requested the court to declare as illegal the omission/non-inclusion of the clause in SBD 2024-25, which provided not to allow any company that had been reported in past for provision of spurious/adulterated drugs.

Mr Butt stated that it was clearly established that from the very inception in order to make the respondent- company, M/S Frontier Dextrose Limited, to get succeeded in the bidding process, the clause pertaining to spurious drugs had purposely been omitted from SBD.

He said when the petitioner perused the SBD, it was noted that the clause contained in Bid Form-III (affidavit) to be obtained from the participating bidder had purposely been removed.

The bench, in its 10-page detailed judgment, found that a key clause in the tender documents was deliberately omitted to facilitate the eligibility of one bidder, with no plausible justification on record. “This constitutes a quintessential case of mis-procurement,” the judgment reads, “rendering the impugned procurement contrary to the public interest”.

“It is well-settled principle of law that the integrity, transparency and fairness of the procurement process of public purposes must remain unimpeachable at all costs. In particular, when public funds are expended through the procurement process, strict adherence to the universal principles of transparency and fairness is imperative,” the bench observed adding that it was the rigorous observance of these principles that upheld the integrity of the process.

Citing a series of landmark judgments from the Supreme Court and high courts, the bench observed: “The cited case-law collectively establishes that public procurement must adhere strictly to principles of transparency, fairness and non-discrimination, ensuring that public resources are utilised efficiently and equitably. Thus, under no circumstances can any procurement process funded by public resources be deemed valid if it falls short of integrity, lacks fairness and transparency, is tainted with favouritism and nepotism, or is tailored to benefit a specific individual.”

The bench pointed out that the director general drugs and director general health services were repeatedly asked to explain the rationale behind substituting the contents of the affidavit, but the said officers were unable to provide any satisfactory response, apart from contending that such an eventuality was addressed under the Drug Act, 1976.

“Notably, they neither offered an explanation nor placed any record before the court to demonstrate what necessitated the omission of this essential criterion,” the bench observed.

The director general health services, Dr Mohammad Saleem, stated that out of 1,400 items advertised for procurement, only 15 items were awarded to M/S Frontier Dextrose Limited (Respondent No. 6).

He said that those specific items were already under a stay order since Nov 19, 2024, and no supplies had been made to any health facility during this period.

He contended that the procurement process had been carried out with complete transparency, in accordance with advertised tender documents, approved standards, pharmaceutical quality requirements, and relevant laws including the Drug Act 1976, DRAP Act 2012, and the KP Public Procurement Regulatory Authority (KP-PPRA) Rules.

Published in Dawn, April 5th, 2025